A Never-Ending Sentence for the Sex Crime You Have Yet to Commit

The Supreme Court has announced that it will hear arguments over a federal law that allows the government to confine "sexually dangerous" prisoners in mental hospitals after they've served out their sentences. According to the Department of Justice, 95 federal prisoners have been "identified as possible candidates for post-sentence detention." Back in January, the 4th Circuit Court of Appeals struck down the law as unconstitutional. The 4th Circuit's justification:

The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law.

A commenter at Sentencing Law and Policy (linked above) points out probably the strangest element of the law in question (18 USC 4248): It allows the government to detain "sexually dangerous" persons regardless of their crime:

Section 4248 does not require that the potential committee has ever been convicted of a federal sex offense, or indeed ANY sex offense. All it requires (on this issue) is that the govt prove, by clear and convincing evidence, that the person has at some time in his or her life engaged in child molestation or sexually violent conduct (both as defined by BOP regs).

Reason's Kerry Howley and Jacob Sullum took on the post-incarceration abuse of sex offenders here and here.

Comments

[Kyle Jordan]

Who's gets to define "sexually dangerous"? And how long before the abuses of the definition start?

This is incredibly bad.

[jtuf]

I hope the Supreme Court strikes down this law. The aburdity of locking people up for actions they might but haven't done becomes apparent if you just apply it to the entire codebook. Picture it. Social scientists declare that they have finally eliminated crime from society. As proof they point to the empty jails and courts. It's been years before the police have had to arrest a single person. Instead, anyone with suspicious behavior is brought to the local emergency room for an expert evaluation. There a psychiatrist evaluates that person and hears the reports to determine his risk to society. Because it is a medical procedure, not a trial, the person has no lawyer present. There are no specific charges for him to dispute. There is no opportunity to cross examane or even hear the testimonies given by other people. The stakes of this case are high.

[Xeones]

Shades of That Hideous Strength again. The Institute gets government sanction to treat criminals as victims of mental illness; there is one case of a man convicted of petit larceny who is released from his jail sentence only to be "hospitalized" and "treated" indefinitely. For his, and society's, good, of course.

[John Thacker]

This has always been my assumed result for the idea of treating crimes as being caused by the criminal's circumstances (genetic or environmental), instead of free will and personal guilt. Once you eliminate responsibility, you eliminate the sharp distinction between having committed a crime and being extremely likely to. (It's only a difference in probability at that point.)

Nothing says that accepting the idea that crime is not a criminal's fault leads to being more lenient.

[Silentz]

Quick! Does anyone have Tom Cruise on speed dial? I believe he's already tackled ,this particular problem.

[J sub D]

Since I've come out against sex offender registries and in support of ex-con's gun and voting rights, you can probaly guess my take on this evil law that will be abused if allowed to stand.

Those nine old men* better overturn this lickedy split.

* Yeah, yeah. Like "third word", "nine old men" is too good to retire.

[J sub D]

make that "third world"

Dumbass!

[Rhywun]

Does anyone have Tom Cruise on speed dial? I believe he's already tackled ,this particular problem.

So did Voyager. Of course, Brad Dourif was lucky enough to have a suicidal mission against a bunch of Kazon soldiers to fall back on, thus neatly avoiding having to deal with him anymore after they "fixed" him.

[Mike]

Someday it may be possible to "fix" people like this. That raises all sorts of questions.

[Jeff P]

Knowing with certainty that someone is guilty without evidence is how Columbo did it. If it's good enough for him...

[ChrisO]

There's some science fiction that you really wish had no chance of becoming reality, such as the notion of pre-crime. Alas...

[Abdul]

So, that's why David Letterman apologized to the Palins.

[ktc2]

Anyone taking bets? I say 5-4 they uphold it.

[techreseller]

I cannot even begin to count the number of crimes I have thought of committing. Murder, sex offenses, theft. If you are going to convict me based on what I have thought, I am in deep trouble. If you have to convict me based on what I have done, well, I am very close to a model citizen. This is a very chilling idea. And what is sexually dangerous. Wanting to have sex with that beautiful woman over there? I would be considered dangerous a dozen times a week.

[HeadTater]

One more step towards thought crime.

[Rich]

Congress -- hoist by their own petard.

[Bill Clinton]

First the NSA routs through my email, now this!

[Dello]

Those of you talking thought crime haven't seen the light. Those of us in the BDSM community, who actually DO engage in completely consensual "sexually violent conduct" will end up in the psych ward and have our kids taken away.

[JB]

Being a politician is a sex crime. Let's send all those fuckers to the loony bin.

[Michael Ejercito]

Constitutionally, how is this different from the internment of the Japanese-Americans in the 1940's?

[Michael Ejercito]

Nothing says that accepting the idea that crime is not a criminal's fault leads to being more lenient.

Indeed, it could lead to the idea of pre-emptive detention or execution.

[anarch]

Michael Ejercito, I think the difference is that, unlike the Japanese government, a "person [who] has at some time in his or her life engaged in child molestation or sexually violent conduct" is perceived to present an incorrigible, constant threat to defenseless targets.

When the Japanese government surrendered, that war at least was over, which cannot happen with this "war."

[jtuf]

Michael Ejercito | June 22, 2009, 8:34pm | #

Constitutionally, how is this different from the internment of the Japanese-Americans in the 1940's?

"Mentally ill" is only considered a protected class in terms of job discrimination, not medical choices, gun rights, or indefinite incarceration. So, if a company refuses to hire me I on the grounds that I have spent time in mental institutions, I can sue them and have a good chance of winning. If a hospital (a company that provides medical care) locks me up against my will for a month on the grounds that I have spent time in mental institions, I have almost no chance of winning the case.

The New Jersey state consitution even had a clause for decades that read, "No idiot or insane person shall enjoy the right of suffurage." Last election, the voters amended it. They thought the term "idiot" and "insane" were offensive, and so they changed the wording to something more PC. So dennying psychiatric survivors the right to vote is apparently OK as long as you don't hurt their feelings in the process.

[John C. Randolph]

The fourth circuit is right. The statute fails under the Due Process clause.

-jcr

[John C. Randolph]

Constitutionally, how is this different from the internment of the Japanese-Americans in the 1940's?

That was a crime, too. The fact that no government official ever was prosecuted it is a stain on our history.

-jcr